The fundamental Right to Justice: Comprehensive revision of the Right to effective judicial protection

Abstract

The right to effective judicial protection, being one of the rights of maximum constitutional relevance, must not remain static but may evolve towards a more integrative side, giving rise to the powerful extrajudicial forms of alternative dispute resolution (ADR). In this sense, the present work proposes an evolution of the current right, included in art. 24 of the Spanish Constitution, towards a fundamental right that offers, in its text and application, all the possibilities of litigation to the litigant (judicial or out-of court) and with this guarantee its global consideration as a way to obtain justice, together with the traditional judicial solution of the litigation. The Administration of justice of the XXI century, in connection with the social reality and the rise of extrajudicial means of resolving litigation (arbitration, mediation, conciliation, negotiation), must be sustained in the future on a fundamental right to justice, right of the maximum legal category that enables the citizen to choose freely the solution to the litigation considered most appropriate for the effective protection of their rights and interests. The work presents the characteristics and concept of this possible new fundamental right, broader and more inclusive than the current right to effective judicial protection, and directly connected with the culture of self-management and discretion in the application of subjective rights, which, in addition, it will suppose a new model of Administration of justice, in which all the out-of-court options of litigation will be contemplated by the current legislation and will be incorporated as complements to the process. 

Summary

I.- Approach for evolution towards an integral and integrating fundamental right to the effective protection of subjective rights. 1.- What is “justice”? 2.- A broader concept of justice claims a fundamental integrating right: precedents. II.- The right of access to justice as human and fundamental right. III.- The Administration of justice from the integrating and integral vision of the right to justice. IV.- Constitutional procedural profile of the right to justice. 1.- Notion and application of fundamental procedural right to justice. 2.- Legal constitutional elements that shape the right to justice. V.- Conclusion and final proposal